Argento

MEMORANDUM **

Federal prisoner Joel Phillip Argento appeals the district court’s order denying his 28 U.S.C. § 2255 motion to vacate his 210-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 , and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g). We have jurisdiction pursuant to 28 U.S.C. § 2253 (a). We vacate and remand for further proceedings.

We previously set aside Argento’s conviction for using and carrying a firearm during a drug trafficking crime, vacated his sentence and remanded for resentencing on his remaining convictions. See United States v. Argento, No. 95-50337, 1996 WL 471358 (9th Cir. Aug. 19, 1996) (unpublished memorandum disposition). Subsequently, Argento filed this § 2255 motion, contending that he received constitutionally deficient counsel at re-sentencing because counsel failed to request a downward departure based on his post-sentence rehabilitation.

It appears that despite United States v. Gomez-Padilla, 972 F.2d 284 (9th Cir.1992), post-offense rehabilitation could arguably have formed a permissible basis for a downward departure at the time of Argento’s…